THE COURT.
[1] Petitioners filed an application for a writ of mandate to compel the respondent to settle a proposed bill of exceptions preparatory to an appeal from a judgment against sureties on an appeal bond entered on motion after the affirmance of the judgment appealed from. (Code Civ. Proc., sec. 942.)
From the facts alleged in the petition for the writ it appears that, on timely motion, the appeal of the sureties from the judgment will have to be dismissed. (Duerr v. Sloan, 50 Cal.App. 512, 516 [195 P. 475]. See, also, Meredith v. SantaClara etc. Assn., 60 Cal. 617, 621, and Gray v. Cotton,174 Cal. 256, 258 [162 P. 1019].)
Mandate will not lie to compel the performance of a useless act. The petition is therefore denied. *Page 668